Tuesday, July 9, 2013
Abstract: Conventional wisdom holds that the 2012 election triggered a seismic shift in the politics of immigration, making the prospect of comprehensive immigration reform more likely than in many years. At another level, however, plus ça change, plus c’est la même chose: whatever the ultimate fate of comprehensive immigration reform, the immense immigration enforcement system that has emerged in recent decades appears certain not just to endure, but to extend its reach. Even as the particular forms of regulation remain in flux, reform undoubtedly will include an aggressive, continuing commitment to large-scale enforcement. The consequences of this entrenchment of mass immigration enforcement remain underappreciated, and in this Article I assess the evolution of immigration enforcement into an enduring regime of mobility surveillance. By any measure, enforcement levels have soared in recent years, yielding a staggering, widely noted increase in the number of noncitizens expelled from the United States. However, also embedded with in that growth have been major changes in the nature of immigration regulation itself, including the implementation of transformative new surveillance and “dataveillance” technologies. The broader consequences of these developments, including the attendant sea change in the underlying nature of immigration enforcement, remain underappreciated. In this Article, I theorize and assess this revolution in the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Immigration regulation has not simply evolved into a system of mass enforcement, though it manifestly has. More fundamentally, the evolution of this system has reshaped the underlying meanings and functions of immigration regulation. Because the traditional frameworks of immigration law offer neither the vocabulary to fully engage with this transformation nor the mechanisms to constrain enforcement activities across all of the many domains in which they occur, I accordingly advance a framework rooted in scholarship on surveillance and privacy to build upon the insights offered by existing immigration law scholarship.
A complete understanding of immigration regulation today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in the underlying functions of immigration regulation. As the institutions and mechanisms of immigration enforcement rapidly become integrated into the broader “national surveillance state,” scholars, policymakers, and advocates need to grapple more directly with the implications of that reconfiguration.